State Consumer Disputes Redressal Commission
International Development Programme ... vs Ms.Geetu Bhalla on 23 May, 2014
First Appeal no. 771 of 2009 1
FIRST ADDITONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No.771 of 2009
Date of institution : 05.06.2009
Date of Decision : 23.05.2014
International Development Programme (IDP), Education Australia, SCO
140-142, Sector -9, Madhya Marg, Union Territory of Chandigarh.
Office also at: Feroze Gandhi Market, above Titan Showroom, Ludhiana,
Punjab.
....Appellant/Opposite parties
Versus
Ms.Geetu Bhalla wife of Shri Avon Bhalla, resident of House No.141,
Dasmesh Nagar, Ferozepur City, Punjab.
...Respondent/complainant
Present:-
For the appellant : None
For respondent : Sh.Sameer Sachdeva, Advocate
First Appeal No.846 of 2009
Date of institution :19.06.2009
Geetu Bhalla, w/o Mr.Avon Bhalla, r/o 141, Dasmesh Nagar, Ferozepur
City.
...Appellant/complainant
Versus
1. International Development Programme (IDP), Education Australia,
SCO No.140-142, Sector 9, Madhya Marg, Chandigarh.
2.
3. International Development Programme (IDP), Education Australia,
Feroze Gandhi Market above Titan Showroom, Ludhiana.
...Respondents/Opposite parties.
First Appeals against the order
dated 22.04.2009 of the District
Consumer Disputes Redressal
Forum, Ferozepur.
Before:-
First Appeal no. 771 of 2009 2
Shri Baldev Singh Sekhon,
Presiding Member
Shri J.S.Gill, Member Present:-
For the appellant : Sh.Sameer Sachdeva, Advocate
For the respondents : None
BALDEV SINGH SEKHON, PRESIDING MEMBER:
This order will dispose of two appeals i.e. F.A.No.771 of 2009 (International Development Programme Vs. Ms.Geetu Bhalla) and F.A. no.846 of 2009 (Geetu Bhalla Vs. International Development Programme & Anr.) as both the appeals are directed against the same impugned order dated 22.04.2009 passed by the District Consumer Disputes Redressal Forum, Ferozepur (in short, "the District Forum") vide which the complaint filed by the respondent/complainant was partly allowed and the appellant/opposite parties were directed to pay a consolidated sum of Rs.1.00 lac on account of refund of examination fee as well as various other expenses incurred by the complainant for immigration purposes and also compensation for mental agony and harassment as well as cost of litigation to the complainant. The order was directed to be complied within 30 days of receipt of copy of the order, failing which said amount of Rs.1.00 lac was to carry interest @ 9% p.a. from the date of iling of the complaint i.e. 22.10.2008 till realization. The facts have been taken from First Appeal No.771 of 2009 and the parties would be referred by their status in this appeal.
2. Briefly stated, the facts of the case are that the opposite parties conducted a seminar in the month of November, 2006 at Ferozepur, inviting unemployed youth to have a chance to learn and earn in Australia and also assured them of the better skilled jobs by clearing IELTS Australia. The complainant also attended the said seminar and was First Appeal no. 771 of 2009 3 assured of better services to get job in Australia by the opposite parties. After consulting, the opposite parties found that she had sufficient eligibility, qualification and experience for better job in Australia and on the assurance of opposite parties, complainant got herself registered with Australian Computer Society, Sydney (in short, "ACS") and deposited Aus $ 350, equivalent to Rs.12,300/- in Indian currency plus Rs.200/- as foreign currency exchange which was confirmed by the ACS on 23.01.2007. It was pleaded that the opposite parties conducted IELTS Australia examination for which the complainant deposited the requisite fee and, as such, became the consumer of the opposite parties. As per requirement, she became member of ACS which is the recognized agency for Information and Communication Technology Profession in Australia. Thereafter, she sent an application for skilled visa application to Australia and deposited Aus $ 1990 equivalent to Rs.69,391-30p in Indian currency. The passing of the IELTS with 6 bands in each module of testing was essential for getting immigration under skilled professional category. The IELTS is an English language ability test for a person, who wants to get immigrated to Australia. As per the requirements, she also got herself medically examined from the various medical attendants and deposited Rs.3600/- for the said purpose. She completed all other formalities except clearance of IELTS Australia test. It was pleaded that she appeared in the IELTS Australia Test on 22.05.2008 after depositing the examination fee of Rs.7200/- with opposite party No.1 which was conducted by opposite party No.2 at Ludhiana. In the meanwhile, Australian Govt. fixed the deadline for production of result regarding passing of IELTS Australia examination by 26.06.2008. The result of the said test was declared by opposite parties on 31.05.2008 which was received by the complainant on 11.06.2008. As per the requirement, 6 points in each subject was the minimum requirement, but the complainant was shown to have obtained 5.5 bands in writing skill. First Appeal no. 771 of 2009 4 She was not satisfied with the above test result and, as such, applied for re-evaluation of examination of writing skill test and deposited fee of Rs.5500/- on 17.06.2008 with the opposite parties and after re-evaluation, the band score in writing skill was increased from 5.5 to 7.0 and, as such, she became eligible for immigration to Australia. The said result after re- evaluation was declared vide letter dated 07.08.008, whereas the deadline fixed for Australia Govt. was 26.06.2008 and, as such, her visa application was rejected by the Australian Govt. vide their letter dated 23.07.2008. The complainant also requested the Australian Govt. for reopening her case as it was the fault of the opposite parties in not intentionally declaring the correct result and then not intimating the correct result after re-evaluation in time due to which, the Australian Govt. reused to accede to her request. Alleging deficiency in service on the part of the opposite parties, she filed complaint before the District Forum, seeking directions to the opposite parties to pay Rs.5 lacs as compensation for mental agony and harassment and loss of career, refund the amount already deposited by the complainant i.e. $350, equivalent to Rs.12,306/- plus Rs.200/- =12,506/-, visa application fee of 1990 $ AU equivalent to Rs.69,391.30p, medical examination fee of Rs.3600/-, IELTS fee of Rs.7200/- and Rs.5500/- as litigation expenses.
3. Upon notice, the opposite parties filed written reply, taking preliminary objections to the effect that IELTS examination is conducted by authorized test centre i.e. Planet Education which was authorized by the IELTS Australia Pvt. Ltd. and, as such, no cause of action arose against the opposite parties. Therefore, the complaint was bad for non-joinder of the necessary parties. It was denied that the opposite parties ever conducted any seminar at Ferozepur. It was further pleaded that the Regional Head Office of the opposite party is situated at New Delhi and its branches are located at Chandigarh and Ludhiana and no part of cause of First Appeal no. 771 of 2009 5 action ever accrued within the territorial jurisdiction of District Ferozepur. Thus, the District Forum was barred from hearing the adjudicating the complaint. It was also pleaded that the opposite parties were only providing advisory and counseling services to the aspiring students, intending to go abroad for education/vocation without any consideration, so no relationship of 'consumer' and 'service provider' for consideration exists and, as such, the complaint was barred under the Consumer Protection Act.
4. On merits, facts regarding deposit of fee and submitting of application to ACS were denied for want of knowledge. It was further denied that the opposite party conducted IELTS test or wrongly declared result of the complainant, as alleged. It was averred that the complainant approached Ludhiana office of "Planet Education Pvt. Ltd.", the authorized Test Centre of IELTS Australia and applied for taking IELTS examination and no service of the opposite parties had been obtained by the complainant for this purpose. It was further submitted that any person desirous of immigrating to Australia for education or for vocation is mandatorily required to submit proof of knowledge in English and IELTS examination measures the ability to communicate in English for people, who intend to study or work, where English is the language of communication. The complainant was well aware of passing of the IELTS test along with approximate scores as fixed by the Australian Govt. which was pre-condition. So she should have appeared in the same before making her visa application, but she applied for immigration without clearing IELTS exam, as such, she herself was at fault. It was further admitted that the complainant appeared in the IELTS examination on 22.05.2008 and the result was declared on 31.05.2008. As per the rules, the applicants were entitled for remarking of their test result by making such an application within six weeks of the test date and upon the payment First Appeal no. 771 of 2009 6 of certain application fee and the result, after re-marking, was also to be declared within the stipulated time. It was further submitted that the IELTS test as well as re-evaluation result was declared within the timeframe as per the rules and regulations by IELTS Australia and, as such, there was no deficiency in service on the part of the opposite parties. It was further elaborated that there was no relationship between the Govt. of Australia and IELTS Australia, as such, if the Govt. of Australia rejected the application of the complainant, no fault can be attributed to the IELTS Australia, whose work is just to conduct the IELTS Australia examination.
5. Parties led their evidence in support of their respective contentions by way of affidavits and documents and the District Forum after going the same as well as after hearing counsel for the parties, allowed the complaint in aforesaid terms.
6. Aggrieved by this order, the appellant/opposite parties has come up in the appeal (F.A. No.771 of 2009) taking preliminary ground that the District Forum committed grave error in law while deciding the issue of territorial jurisdiction. As per Para-7 of the impugned order, the District Forum assumed the jurisdiction in contradiction of the settled principles of law and against the judgment "IITT College of Engineering Vs. Manohar Singh Walia & Ors.", IV (2007) CPJ-448 and failed to appreciated the fact that the appellant/opposite parties were having their office at Chandigarh and Ludhiana and complainant approached the Ludhiana office of Authorized Centre for conducting the IELTS examination. While assuming the territorial jurisdiction, the District Forum committed error by merely relying on the averments made by the complainant which were not, at all, supported by any evidence. It was specifically denied by the appellants that at no point of time, seminar was conducted by them at Ferozepur. Further, the District Forum committed error in holding that the area of office of Ludhiana office of the appellant is extended to the limits of Ferozepur First Appeal no. 771 of 2009 7 District. Hence, the impugned order passed by the District Forum is bad in law for want of territorial jurisdiction and is liable to be set aside. It was further submitted that the opposite parties made specific application for examination and cross-examining the respondent, but neither the prayer was allowed nor declined. The District Forum just ignored the prayer in routine manner while disposing of the complaint filed by the complainant. It was further submitted that the IELTS exam was conducted by Planet Education after depositing the requisite fee IELTS exam to the said centre, which has not been impleaded as necessary party and the opposite parties were only engaged for giving advisory services to the aspiring applicants, intending to immigrate Australia for study and vocation. They were not, at all, concerned with the conducting of IELTS examination or for declaring of its result. Acceptance of appeal and setting aside the impugned order was prayed.
7. On the other hand, the respondent/complainant filed cross appeal i.e. F.A. No.846 of 2009 (Geetu Bhalla Vs. International Development Programme & Anr.), for enhancement of compensation.
8. We have gone through the pleadings of the parties and have perused the record of the District Forum and have heard the learned counsel for the respondent/complainant. None appeared on behalf of appellant at the time of arguments.
9. The first and foremost question to be decided by this Commission is whether District Forum, Ferozepur had the jurisdiction to entertain and decide the complaint filed by the complainant against the opposite parties. It is apparent from the memo of parties that the office of opposite parties are located at Madhya Marg, Chandigarh and Feroze Gandhi Market, Ludhiana and they have no office at Ferozepur. It has been specifically denied by the opposite parties that they never conducted any seminar in Ferozepur in the month of November, 2006 or at any point First Appeal no. 771 of 2009 8 of time though invitation was offered to the unemployed youths to have the chance to learn and earn in Australia. Therefore, no cause of action or part of cause of action accrued to the complainant within the jurisdiction of District Forum, Ferozepur. It is noticed that the District Forum while assuming the jurisdiction has held in Para-7 as under:-
"The different offices of the opposite parties, located at different locations in India, operate in certain regions covering two-three or more Districts. The area of operation of the Ludhiana office is also extended to the limits of Ferozepur District. The services are provided to the residents of Ferozepur by the Ludhiana office. So as Ferozepur comes under the area of operation of Ludhiana office, the opposite parties carry on their business through Ludhiana office, so the Consumer Forum at Ferozepur has territorial jurisdiction to entertain the complaint. Moreover, it has been specifically pleaded by the complainant that a seminar was organized at Ferozepur by the opposite parties. Taking into consideration the entire facts and circumstances of the case, it can be well assumed that the District Forum at Ferozepur has the jurisdiction to entertain and decide the present complaint."
10. The above said observation of the District Forum is without any logic, reason or rhyme. By no stretch of imagination, it can be assumed that the area of operation of a branch office at Ludhiana can be extended to the limits of Ferozepur District. The opposite parties have categorically denied that they had conducted any seminar in Ferozepur District, as alleged by the complainant. The bare averments made by the complainant without any proof cannot be taken as a basis for assuming the territorial jurisdiction. Hence no cause of action or part of cause of action had accrued within the territorial jurisdiction of District Forum, Ferozepur First Appeal no. 771 of 2009 9 and therefore, the District Forum, Ferozepur had no territorial jurisdiction to entertain and decide the case. Therefore, the order passed without jurisdiction is not sustainable in the eyes of law. The Hon'ble Supreme Court in case "Sonic Surgical Vs National Insurance Company Limited", IV(2009) CPJ-40(SC) observed in Para-8 (relevant portion) as follows:-
"In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned Counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the Insurance Company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench-hunting. In our opinion, the expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of section 17(2) (b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity {vide G.P. Singh's Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79}".
11. In view of above discussion, the appeal (F.A. No.771 of 2009) is accepted and the impugned order is set aside. Since, the District Forum had no territorial jurisdiction to entertain and decide the complaint, therefore, the complaint is required to be returned to the complainant.
12. Copy of this order along with record of the District Forum be sent to the District Forum forthwith, with the direction that after due service of respondent/complainant, the complaint alongwith documents be returned to her, for presenting the same before the appropriate authority, having jurisdiction, under the law.
First Appeal no. 771 of 2009 10
13. Amount of Rs.25,000/- was deposited by the appellant with this Commission at the time of filing the appeal, along with interest accrued thereon on, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand daft after expiry of 45 days.
F.A. No.846 of 2009:-
14. In view of the reasons and discussion held in F.A.No.771 of 2009 (International Development Programme Vs. Ms.Geetu Bhalla), the F.A. No.846 of 2009 (Geetu Bhalla Vs. International Development Programme & Anr.) is dismissed. No order as to costs.
15. The arguments in both these appeals were heard on 09.05.2014 and the orders were reserved. Now the orders be communicated to the parties
16. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
17. Copy of the order be placed in F.A. No.846 of 2009 (Geetu Bhalla Vs. International Development Programme & Anr.).
(Baldev Singh Sekhon) Presiding Member (Jasbir Singh Gill) Member May 23, 2014.
(Gurmeet S)/Lb/-